GOVERNOR-GENERAL IN COUNCIL Vs. KISHENGOPAL BHARTIA

JUDGEMENT

(1.) This rule has been obtained by the defendant Railway Company and it arises out of a suit for compensation for non-delivery of mustard seeds despatched from Alwar on the B.B. & C.I. Railway to Raniganj on the E.I. Railway.

(2.) The material facts are as follows: 398 bags of mustard seeds were booked from Alwar on the B.B. & C.I. Railway by one Rampatmal Jaharmal to Ranigunj on the E.I. Railway. The railway receipt was subsequently transfer, red to Kishengopal Bhartia, the plaintiff who took delivery of such bags of mustard seeds as subsequently arrived at Ranigunj. At the time of delivery it was found that there were cuts in two of the bags and that consequently there was a shortage of 3 mds. and 30 seers of mustard seeds. The plaintiff sued the Railway Company claiming Rs. 72/14 as the value of the mustard seeds plus interest alleging that the shortage was due to the negligence and misconduct of the servants of the Railway Administration. When the goods were booked at Alwar the consignor executed Bisk Notes "a" and "b". The suit was decreed in full by the learned Munsif against the E.I. Railway Company. The East India Railway Company obtained a rule from this Court. When the rule was heard the suit was remanded to the Court of first instance to allow the parties to adduce further evidence as to the manner in which the goods were booked and the manner in which they were dealt with by the Railway Company from the time of the booking to the time of delivery. On behalf of the plaintiff evidence was given to the effect that the goods were packed in new and doubly sewn bags of sound condition but this evidence was disbelieved by the learned Judge of the Court of Small Causes. On the other hand, evidence was given by witnesses on behalf of the Railway Administration first as to the packing of the goods at Alwar, secondly as to the transhipment of the goods at Agra East Bank Station from the B.B. & C.I. Rly. wagons to the wagons of the E.I. Rly., and the witness who deposed to this transhipment, viz., Zainul Abedin (D. W. 2) deposed that the consignment was then in sound condition. The witness also deposed that the bags were placed in a wagon and the wagon was sealed. A third witness for the Railway Company, Kapil Deo Narayan Prosad (D. W. 3) deposed that when the goods were unloaded at Ranigunj the seals on the wagon were found intact but when the bags were taken out two of the bags were found to have cuts and there was a shortage of 3 3/4 mds. On this evidence the learned Judge in the Court of Small Causes held that Risk Note "a" was not applicable, that under Risk v Note "b" the Railway Company was bound to make full disclosure, and as full disclosure had not been made, the Railway Company could not get immunity under Risk Note "b". He held that the loss undoubtedly occurred while the goods were in the possession of the East Indian Railway Administration and he held that the circumstances indicated that the shortage was due to negligence and misconduct of the servants of the East Indian Railway Company. He accordingly decreed the suit in full with costs. The Railway Company have obtained this rule.

(3.) A number of questions has been raised. It has been argued on behalf of the petitioner that there is no material on record to show that the proviso to Risk Note "b" is applicable at all in the present case and, therefore, the Railway Company had no duty to make disclosure as to how the consignment was dealt with throughout. Secondly, it has been contended that even if there was such a duty on the Railway Company, the evidence that has been given is a complete disclosure of all the material facts within the knowledge of the Railway Company and that no other disclosure has been asked for or could possibly have been made. Thirdly, it has been argued that on the facts established there is no material to justify the inference that the loss was due to negligence or misconduct of the servants of the Railway Company. Fourthly, it has been argued that the learned Judge in the Court of Small Causes was not justified in making a decree for interest prior to the date of the institution of the suit.